Re: Consolidated Application for Authority toTransfer Control of
XM Radio Inc. and Sirius Satellite Radio Inc.
MB Docket No. 07-57

Dear Ms. Dortch:

In an attempt to provide clarity on the Interoperable Mandate, I respectfully submit for your consideration the following:

Dual Mode Radios include chip sets that can receive and process both sets of signals (one from Sirius Satellite Radio and Terrestrial Repeaters and one from XM Satellite Radio and Terrestrial Repeaters) simultaneously, therefore giving consumers continuous access to ALL satellite radio channels.

Interoperable Radios include chip sets that can process signals from either Sirius Satellite Radio and Terrestrial Repeaters OR from XM Satellite Radio and Terrestrial Repeaters, but NOT BOTH simultaneously, and would require some type of switching mechanism to move between one service provider to the other (ie: switching from AM to FM – you can only access AM channels when you are switched to the AM mode and you can only access FM channels when you are switched to the FM mode). I have been told this could be achieved via a firmware update from the satellites to the receivers.

It is important for the Commission to understand the details of these definitions as they are at the heart of the arguments being raised by parties that oppose the merger.

In a recently submitted Engineering Statement Prepared on Behalf of the National Association of Broadcasters, it is suggested that satellite radio companies cannot be trusted as they have failed to meet the F.C.C. mandated interoperable obligations. It is also suggested that the companies will not be able to deliver on their promises to provide additional and diverse channels (ie: multi-cultural, multi-lingual and/or educational programming). With the current hierarchical compression, they argue that it is not possible to add any meaningful programming without degradation of sound quality. The argument is that the companies will not have the spectrum and/or channels available and that additional content and channels would have to be added on a one-for-one basis; meaning, as one channel is added one channel must be removed.

With all due respect to the N.A.B. and Mr. Dennis Wallace (the preparer of said report), I believe they are being misinformed and/or disingenuous. In speaking with Mr. Wallace, and discussing the conclusion of his report, he confirmed to me that current production receivers ARE capable of receiving EITHER service from XM Satellite Radio OR Sirius Satellite Radio, but not both simultaneously. I ask you to please review the conclusion portion of the Engineering Statement dated March 16, 2007:

Conclusions:
It is not possible for the current production satellite receivers to simultaneously (emphasis added) receive both the XM and Sirius signals. In order for consumers to simultaneously (emphasis added) receive the signals of both providers, they would need new (emphasis added) interoperable radios or need to purchase two separate current production receivers. A merger of XM and Sirius would not change the technical parameters or implementations of their respective SDARS systems. Consumers would still not be able to receive the signals of both SDARS providers without buying a new (emphasis added) interoperable radio, or by using two radios simultaneously, one for Sirius, and one for XM. Progress on the design and implementation of a new (emphasis added) unified and interoperable radio has been slow and still has not yielded any commercially (emphasis added) available receivers. The joint venture of XM and Sirius has been ongoing for over seven years and still has not produced the interoperable radio as required by FCC Rules. This fact may indicate the complexities of design and costs are difficult challenges to resolve. The FCC rules
9 Ibid.

I agree with the conclusion as it is factually correct, however, I ask the Commission to please note the use of qualifying words (ie: simultaneously, new, commercially) and read the above again without the qualifying words which have been placed to mislead and confuse this issue. I hope the Commission can see through this rather transparent attempt to obscure the truth: interoperable radios do exist as is supported by the March 14, 2005 letter authored by Patrick L. Donnelly of Sirius Satellite Radio and William Bailey of XM Satellite Radio where they jointly “reconfirm their compliance with Section 25.114(a)(3)(ii) of the Commissions rules by including interoperable radios in their respective system design”. The Engineering Statement seems to conveniently avoid any reference to the companies’ reconfirmation of their compliance with the Interoperable Mandate.

I believe Sirius and XM have contributed to the confusion surrounding the capabilities of current receivers on the market. In their letter of March 14, 2005, Sirius and XM state that they “are optimistic that, at a minimum, a prototype for this type (emphasis added) of interoperable radio (ie: a receiver using a common antenna, a common RF Tuner, and two baseband modules, one for XM and one for Sirius). I ask the Commission to notice that they are qualifying which type of interoperable radio they reference.

On July 2, 2007, Mel Karmazin, in an exclusive interview with TWICE stated:
Karmazin : The opportunity exists for us to commercially (emphasis added) market an interoperable radio. Right now we have developed it. There's one in my office right now, which is an interoperable radio, which is a receiver that in essence has an XM component and a Sirius component sort of Velcro-ed together. So we developed that, and one of the things that we have the opportunity to do is to market it into retail stores as an interoperable radio, one (NASDAQ:ROIA) that would be priced attractively and be able to get the consumer both services. A radio that gets the best of both services is sort of attractive and again enables the two companies to not water each other down but to have a stronger service while competing with all of these other technologies.
I ask the Commission to please note the use of the qualifying word, commercially, and read the above again without the qualifying word. I would argue there is no need to use the word “commercially” other than to confuse the issue. It is my opinion that interoperable radios have already been “marketed” through O.E.M. channels without the consumer’s knowledge and that these receivers could not be “commercially” marketed due to the following reasons:
• the companies have not agreed to enable the interoperability function (via a firmware update)
• the F.C.C. has failed to enforce the mandate to require the companies to do so
• the companies may not have the proper certification from the F.C.C. to do so
• and due to the exclusive and exclusionary contracts with the O.E.M.’s by Sirius and XM

The following excerpt is quoted from Interoperable Technologies, LLC which is the joint venture owned by Sirius and XM:
It is acknowledged that SIRIUS, XM and their manufacturing partners already (emphasis added) produce receivers that permit end users to access all Satellite Digital Audio Radio systems in compliance with FCC interoperability (emphasis added) obligations. Furthermore, there currently is no assurance that the XM or Sirius manufacturing partners will build dual-mode (emphasis added) radios, that they will be cost competitive, or that any significant market for dual-mode (emphasis added) radios will develop. Even so, Interoperable Technologies stands to develop the opportunity for dual-mode (emphasis added) satellite radio technology.
It is my opinion that this reconfirms my position of interoperable radios being manufactured but not yet being made available “commercially” to the public. Please note after they acknowledge “that SIRIUS, XM and their manufacturing partners already (emphasis added) produce receivers that permit end users to access all Satellite Digital Audio Radio systems…” they seem to contradict themselves by saying “Furthermore, there currently is no assurance that the XM or Sirius manufacturing partners will build dual-mode (emphasis added) radios... or that any significant market for dual-mode (emphasis added) radios will develop.” As you can see from the prior definitions of “Interoperable” and “Dual Mode”, they are not one and the same.
Based on the aforementioned observations, it is apparent that the F.C.C. must provide clarity on the lack of enforcement, compliance and implementation of their Interoperable Mandate. The Media Bureau and the International Bureau are unsure whether or not the companies are in compliance or in violation of the Interoperable Mandate. The Bureaus have forwarded my Petition for Declaratory Ruling to the Enforcement Bureau for review as to the companies’ status of compliance. It troubles me that in the middle of a major transaction the public is being asked to comment on a proceeding rife with confusion even at the Regulatory level.
Respectfully ,
Michael Hartleib

SIRIUS SHAREHOLDERS WERE DEPRIVED OF THEIR RIGHT TO A FULLY INFORMED VOTE

The Defendants had a fiduciary responsibility to disclose all relevant and material facts to
their shareholders prior to the shareholder vote which was held on November 13, 2007.

On November 5, 2007, Sirius filed an 8K providing “Supplemental Disclosures” which was of little to no benefit to shareholders and did nothing to erase or address the issues raised in the foregoing case. It failed to deliver the necessary transparency and disclosure of all material facts for a fully informed vote. One could argue that soliciting a shareholder vote prior to knowing the Regulators’ restrictions and conditions on said merger is irresponsible and could lead to many shareholders wishing they could change their vote and feeling disenfranchised; such was the case in the recent AT&T Bellsouth Merger where AT&T was forced into agreeing to many new conditions and concessions in the eleventh hour in order to consummate the deal by year ‘s end. Michael Hartleib is of the belief that if the merger is consummated without full disclosure to shareholders, Sirius’ board and executives will be doing so with the intent of self gain as was argued in said Complaint. Unless enjoined by this Court and the shareholder vote is deemed invalid, the defendants will continue to breach their fiduciary duties owed to plaintiff and the Class, and may consummate the proposed Merger which will harm the Class, and/or benefit them (‘self-dealing”) in the unfair manner complained of, all to the irreparable harm of the Class, as outlined in the aforementioned Complaint.

MATERIAL FACTS AND INFORMATION PROVIDED TO PLAINTIFF COUNSEL WERE NOT ADDRESSED TO THE BENEFIT OF SHAREHOLDERS

On Friday 10/26/07 Mr. Hartleib had a telephone conversation with Jeffrey P Fink (senior counsel for plaintiff) and expressed his concerns as to the lack of disclosure of material facts including but not limited to information surrounding the Interoperable Mandate and interoperable radios. Mr. Fink stated he would be deposing Mel Karmazin on Monday 10/29/07. Mr. Hartleib gave Mr. Fink several questions to ask Mr. Karmazin regarding the interoperable device and mandate while under oath. Note: Mr. Fink was in possession of FCC filings submitted by Mr. Hartleib on FCC Docket 07-57. Counsel should have been fully informed as to Mr. Hartleib’s concerns as a shareholder. Mr. Fink, as well as Mr. Harry Weiss, had suggested that the Interoperability Issue and/or Mandate is new and is not an issue raised by this Complaint. Mr. Hartleib disagreed with counsels’ assertions and argued that this is a relevant material fact that any reasonable shareholder would find important and could have dramatic impact on valuations. Interveners are not prohibited from raising “new issues”, but rather from seeking relief that has “no relation” to the action (McGee v Horvat, 23 AD2d 271, 276).

On approximately Tuesday 10/30/07, Mr. Hartleib had a telephone conversation with co-counsel Harry Weiss wherein Mr. Weiss suggested that Mr. Hartleib should attend the upcoming preliminary hearing. On Friday 11/2/07, Mr. Hartleib received a voice mail message from Mr. Weiss advising that there would not be a preliminary hearing and that he should not make travel arrangements. Later that same day, Mr. Hartleib contacted William Regan at Simpson, Bartlett and Thatcher (counsel for defendants) and expressed his concerns regarding the lack of disclosure and candor of the defendants.
Mr. Hartleib advised Mr. Regan that if they were to continue the shareholder vote without disclosing and addressing the issues of concern, they would be doing so with malice. Mr. Regan acknowledged a Memorandum of Understanding had been reached. Mr. Hartleib asked if there would be a new proxy or a supplemental proxy sent to shareholders. Mr. Hartleib had to phrase the question several times as Mr. Regan was reluctant to answer. But eventually, Mr. Regan stated he didn’t think either would happen.

Mr. Hartleib informed Mr. Regan that this was totally unacceptable and would seek to intervene in this case or seek action on his own.

One of two things has happened in this case. Either lead counsel chose to ignore valuable information from a member of the class regarding the proposed merger or even worse, discussed this information with Sirius executives and/or counsel and then did not disclose it or ask that it be disclosed in the supplemental disclosure (8K) filed by Sirius Satellite Radio.

We as shareholders should have been informed of all of the facts, prior to being ask to cast our votes. This Interoperable issue would have had major impact on the valuation of this merger! When the attorney's for Sirius argued in court that Sirius could not afford to pay $1million to properly notify their shareholders that they were about to lose all of their rights as they wanted to run a one-day ad in the Wall Street Journal which very few members of the class would ever see and they refused to send notice via US mail to their individual shareholders. One week later, Mr. Karmazin was paid $32million, a million dollars more than the prior year. That was the end of the line for me. I was and have been a big fan of Mr. Karmazin and his skills but lost a tremendous amount of respect after this took place. I am still having a hard time believing that Mr. Karmazin is in this for the money as he is already an extremely wealthy man worth hundreds of millions, if not over a billion dollars. I think that Mr. Karmazin took the position of Sirius CEO as a challenge and as an attempt to seal his legacy as one of the greatest radio and/or entertainment executives of recent years. Some might say this was Mel's plan all along and knew that if this merger were denied or conditions were too severe he would walk away knowing that interoperable devices would be enabled and available to consumers which would have devasting effects on XM as consumers will now choose Sirius over XM 70+ percent of the time when given a choice. I don't know what to think at this point. The only thing I know for sure is that this company has lied through their teeth to me,their shareholders and continued to change their story as I would present new and compelling information. I believe this deal was no merger of equals and Sirius should have demanded interoperability be introduced to consumers.

hartleib1 you cant just keep copying and pasting filling information into a thread. Its completely out of context, this is a forum not a comment filling system. If you have something to say then say it otherwise you are just solidifying everyone's opinion of you, you nutjob.

I think that Mr. Karmazin took the position of Sirius CEO as a challenge and as an attempt to seal his legacy as one of the greatest radio and/or entertainment executives of recent years. Some might say this was Mel's plan all along and knew that if this merger were denied or conditions were too severe he would walk away knowing that interoperable devices would be enabled and available to consumers which would have devasting effects on XM as consumers will now choose Sirius over XM 70+ percent of the time when given a choice.

so you think the current generation of radios is capable of receiving signals from either satellite company?

I am not sure where to post this but ...
I have two questions
1. is the dsision still expected soon, 29 july? everything else is Blah blah blah to me. I bought stock because I expected this to happen soon. and
2. if everyone is so worried about a "monopoly" when are they going after clearchannel? or as I refer to them clearly cancel you rights to benifit PC